Suspension: A Briefing Note

"Natural justice: refers to the basic fundamental principles of fair treatment. These principles include the duty to give someone a fair hearing; the duty to ensure that the matter is decided by someone who is impartial; and the duty to allow an appeal against a decision" (Bateswells Employment Update,5)

'Delay is always the enemy of a fair dispute resolution in the workplace, leading as it does to fading memories, prolonged anxiety, the entrenchment of parties' positions, prejudice to a fair hearing of the issues, and thereby to injustice. (Bateswells Employment Update,5)

"Suspension is a neutral act: it does not constitute disciplinary action and must not be taken as implying any assumption or acceptance that the allegations are well-founded."

This last quotation is the mantra which is repeated time and again when an employee is suspended. It was heard when Karen Huchet was suspended, when John Day was suspended, and when Graham Power was suspended. But it is not true - a case in the UK, which has been widely cited on legal sites and by lawyers who deal with employment law, shows that this is, in fact, a fiction which has not stood up in court.

However this stance was intended, and I am sure that those framing the suspension provisions were honest when they meant it to be "a neutral act", it is not necessarily so. The case law in question established, beyond a shadow of a doubt, that the suspension of employee is "not a neutral act" and may be restrained by injunction

In the case of Mezey versus South West London and St George's Mental Health NHS Trust, the Court of Appeal refused the Trust leave to appeal against a High Court injunction to restrain its suspension of Ms Mezey, a consultant psychiatrist. She had given a voluntary undertaking to abstain from her clinical work pending an internal disciplinary hearing, but was suspended by the Trust. She challenged the contractual lawfulness of her suspension., and pending trial of that issue, she obtained an interim injunction from the High Court. The arguments for the Trust were the standard ones, that suspension is "neutral":

Mr Supperstone accepts that it is perfectly permissible to restrain a dismissal, but he contends that a suspension is a qualitatively different affair. It is, he submits in the skeleton argument:

"a neutral act preserving the employment relationship".

The Trust argued that, although a court may restrain a dismissal, it was wrong in principle, at least pending trial, to restrain a suspension, since this was "a neutral act preserving the employment relationship" and was appropriate in view of the breakdown of trust and confidence in Ms Mezey's clinical judgment. Suspension was, in the Trust's view, qualitatively different from dismissal. The Court of Appeal rejected that argument, "at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean it cannot be done, but it is not a neutral act."

The ruling by the Court of Appeal was as follows:

"I venture to disagree, at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean that it cannot be done, but it is not a neutral act. Indeed, Mr Supperstone goes on in his skeleton argument to justify the suspension on the grounds that the criticisms of the claimant in the most recent report were serious and that she had -- I use his word -- "failed" to accept the criticism of her in the two previous reports."(1)

That is is now established as a matter of principal, and not just in the medical profession, can be seen clearly in "Suspension and garden leave" in the "Employment law update" from late summer 2008. Here Paul Seath, a solicitor specialising in employment law notes that:

"A constructive dismissal is not necessarily an unfair one, but it is a dismissal that can be avoided by not suspending or placing somebody on garden leave unnecessarily or without good reason. It makes no difference to the issue of whether or not there has been a fundamental breach that the employer did not intend to end the contract. Saying that the suspension is a neutral act is not enough therefore."

"Regardless as to whether the employer says a suspension is a neutral act, it is not seen as such by Tribunals. Caution should therefore be exercised when suspending. Suspension should only take place where it is absolutely necessary - for example, to prevent the destruction of evidence or the intimidation of witnesses. It is not enough simply to say that suspension is 'necessary pending an investigation'. It must be necessary in the context of that investigation."

"Even where it is necessary, care should be taken to ensure that the suspension is as short as possible. Once the relevant witnesses have been spoken to or the relevant evidence secured, the suspension should be lifted."

And the ACAS Guide (2009) to Discipline and grievances at work, which counts suspension along with other disciplinary decisions, also says that there should be a right to appeal against that decision:

"The opportunity to appeal against a disciplinary decision is essential to natural justice, and appeals may be raised by employees on any number of grounds, for instance new evidence, undue severity or inconsistency of the penalty. The appeal may either be a review of the disciplinary sanction or a re-hearing depending on the grounds of the appeal. Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing. The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case."

What is especially notable is that when it looks at the methods of appeal, it asks "What should an appeals procedure contain?" and sets out the following:

- specify a time-limit within which the appeal should be lodged (five working days is commonly felt appropriate although this may be extended in particular circumstances)

- provide for appeals to be dealt with speedily, particularly those involving suspension or dismissal

- wherever possible provide for the appeal to be heard by someone senior in authority to the person who took the disciplinary decision and, if possible, someone who was not involved in the original meeting or decision

Considering the latter first, it seems that while Senator Le Marquand was not initially involved in the disciplinary decision, as corporation sole, and as one of the parties in the process, he should not have been in the chair for the suspension review meetings, although he should have been present to present arguments for the continued suspension. Both chairing a meeting, and providing a judgement on the review at the completion of the meeting would seem to indicate a potential conflict of interest.

But of even more concern is the lack of a any deadline, leading to suspensions which just drift on, with no clear notion of when the disciplinary hearing will take place. The lack of a time limit seems to be the fundamental problem with Jersey suspensions. Clearly investigations must be thorough, but the lack of a deadline means that more time is spent going into the finest details, and it is arguable that anything found from such an examination will not be significant in terms of the whole.

Let me give two examples:

1) If an auditor is checking a balance sheet, and looking for evidence that the company is not sound, or that widespread fraud has been taking place, going through every invoice and stock item, and counting and looking for evidence that some paperclips and biros have gone missing, is not going to alter the big picture. It is overkill, and auditors have to work to a deadline, to both do their job thoroughly, and be aware of what is disproportionate, and what is not.

2) If a cartographer is mapping a coastline, the map can go into finer and finer detail, and as a coastline becomes more complex as it is magnified (rather like a fractal shape), the larger the scale of the map, the finer the detail there will be. But at some point the cartographer will need to step back, and ask what the purpose of the map is, and how much detail is required, otherwise the task could take infinitely long.

The thing about suspensions in the public sector is that any investigation is seen as open ended, and we are into the realms of fractal shapes, or microscopic examination of what lies under each grain of sand. There is no deadline, and matters drift onwards in this way.

Any suspension should be treated as any other project, and managed in the same way. Good project management involves:

- an objective that must be achieved.
- a beginning and an end, with a deadline for completion.
- the co-ordination of different people and multiple activities.
- must be capable of being planned and controlled

Having seen the endless slippage noted with the Wiltshire report, there was clearly no set deadline for completion. It may be argued that a proper investigation requires as much time as it takes, and yet somehow auditors have to work within a limited time frame, and still provide a robust audit, as do many other investigatory tasks required by law, but in the private sector.

Moreover, the lack of a deadline, and the endless slippage shows that the Wiltshire investigation was not well planned or controlled. This is precisely what happens when there is no fixed date for completion. Part of this may be the Ministers responsibility - by including Operation Blast, he widened the terms of the original investigation, and this would inevitably lead to extra time.

A good project has critical milestones set, so that even where there is slippage, this can be noted. It is not clear that Jersey suspensions have any clear management or planning in place, certainly the suspension review meetings just mentioned when the review would be complete. And yet as with any project, there should be milestones, and notifications of when they are complete.

Instead, the practice seems to be to turn the whole matter over to an investigating agency, and just wait for a final report, with no indication - certainly to the general public, nor in the suspension review meetings, of any real planning of milestones in the investigatory process, when they are reached, or when they have failed to have been reached. As 20 Steps to Better Management notes:

People tend to dedicate insufficient time to planning, wanting to get stuck into what they see as the 'real work'. This will inevitably cause problems in the long term.(4)

It has to be asked whether suspensions, as a task in project management, are being properly planned and run when they seem to be open-ended, with no fixed deadlines for resolution, and no clear critical milestones being reported in the investigatory process. While the investigators may have a clear idea of how they are going to investigate matters, it seems to amount to little more than amassing and sifting a mass of data, and I do wonder what project management skills and training those in charge have compared with professionals in that field.

If one compares the BDO Alto report with the Wiltshire Report, one is detailed but clear (and completed within 7 months), while the latter is often an incoherent muddle which looks like a scrappy work in progress, bundled together in a hurry (despite a much larger timescale). Quite frankly, the Wiltshire team seem to have little or no idea how to present a coherent report.

Lastly, the lack of good project management also impacts on the people suspended, who are in limbo until the matter is resolved. The human cost (in this example with doctors, but arguably with other professionals), is well described in an article in the "Journal of the Royal Society of Medicine":

Whilst rhetoric suggests that suspension is a 'neutral act' (and not a dismissal for the purposes of employment law), in reality an exclusion often has serious human implications. A study of 105 suspended doctors showed that one-third required treatment for medical problems directly attributable to the suspension, one-third had sought psychiatric help and about half declared that a family member, usually the spouse, had suffered ill health as a consequence. Exclusion from the workplace is perceived as being unfair because doctors are suspended pending an inquiry, before proof of culpability or even before being allowed an opportunity to respond to any allegations. The new guidelines stipulate that the practitioner should be informed of the nature of the allegation and be given an opportunity to put his or her case before a decision on formal exclusion.

Doctors deserve a transparent investigation within a reasonable timeframe as well as a fair appeals procedure. Suspension, as well as informal 'gardening leave', has a negative impact on a doctor's career and harms a professional reputation even when the practitioner is subsequently cleared of wrongdoing. For a clinician, exclusion can result in reduced self-esteem and disturbing emotions: 'The loss of my job was like a bereavement. Powerful, confusing and shifting emotions swept over me-disbelief (can this really be happening?), sadness, guilt, self-doubt and anger'. Long after the end of a period of suspension and subsequent exoneration, a doctor may be left with a career in shreds and no way of picking up the threads or getting financial compensation.


Links:
(1) The case of Mezey is widely cited by employment lawyers:

Mezey v South West London and St George's Mental Health NHS Trust [2007] EWCA Civ 106.

http://www.practicallaw.com/2-224-2968
http://www.bailii.org/ew/cases/EWCA/Civ/2007/106.html

2) http://www.acas.org.uk/CHttpHandler.ashx?id=1043
3) http://www.thompsons.law.co.uk/ltext/discipline-grievances-work.htm
4) 20 Steps to Better Management
(5) http://www.bateswells.co.uk/Files/Updates/Employment_Update_LateSummer2008.pdf
(6) J R Soc Med. 2004 May; 97(5): 211-218.
Regulation of the medical profession: fantasy, reality and legality
Ash Samanta, LLB FRCP1 and Jo Samanta, BA RGN2